Plaintiff Carolynn Anne Stanley was injured while aboard a
vessel she alleges was negligently designed and manufactured by
defendant Bertram-Trojan, Inc. Defendant has impleaded the
vessel's owner, Chris Blackwell, seeking indemnification or
contribution. Blackwell moves for summary judgment dismissing
the third-party complaint. For the reasons set out below, the
motion is granted, and the third-party complaint is dismissed.

I

On June 20, 1988, Stanley sustained an injury to her leg
aboard the vessel "SeaBee." During a pleasure cruise, a hatch
door located on the floor of the vessel was dislodged, exposing
an access with a sharp fiberglass border. The injury occurred
when plaintiff fell through the access and the sharp edge
severed nerves and muscle tissue in her calf. Plaintiff alleges
that defendant negligently designed and manufactured the hatch
door and access.

(a) Defendant was negligent in (i) failing to
provide a latch to hold a hatch door in place,
(ii) manufacturing a hatch with sharp edges, and
(iii) failing to warn of potential dangers posed
by the hatch. (Amended Complaint ¶ 10-13);

These claims allege "active" misconduct by defendant. If
plaintiff prevails on any of her claims, the result must be
predicated on a finding that defendant acted negligently and
was not merely passive in failing to discover another's
negligence. Thus, even if it is found that Blackwell
negligently maintained the vessel as alleged in the third-party
complaint, both tortfeasors will have been found actively
negligent and their relative fault would not "differ greatly in
gravity." Where joint tortfeasors are actively negligent the
law refuses to recognize any disparity in fault that would
justify shifting the entire loss onto one of the tortfeasors.
Gordon H. Mooney, Ltd. v. Farrell Lines, Inc., 616 F.2d 619,
625 (2d Cir.) ("because [defendant's] negligence contributed to
the loss, [defendant] cannot obtain indemnity"), cert. denied,
Maislin Transport of Delaware v. Farrell Lines, Inc.,
449 U.S. 875, 101 S.Ct. 217, 66 L.Ed.2d 96 (1980); In re Complaint of
American Export Lines, Inc., 568 F. Supp. 956, 964 (S.D.N Y
1983) ("A party may sue in admiralty for tort indemnity if he
is vicariously liable for the culpable conduct of another, but
he may not recover on this theory if he himself has been guilty
of negligence."). Third-party defendant Blackwell's motion for
summary judgment on defendant's indemnity claim
therefore must be granted and that claim dismissed.

This country's treatment of the subject begins in the
mid-nineteenth century with The Schooner Catharine v.
Dickinson, 58 U.S. (17 How.) 170, 15 L.Ed. 233 (1855). Drawing
on the English maritime law of the time, Catharine held that
damages arising from a maritime collision should be equally
divided among joint tortfeasors, regardless of their degree of
fault. This rule governed maritime actions until 1975 when the
Supreme Court recognized that the United States was the only
major maritime nation that continued to follow the mutual fault
rule and that that rule yielded unjust results in most cases.
The Court overruled Catharine and held:

[W]hen two or more parties have contributed by
their fault to cause property damage in a maritime
collision or stranding, liability for such damage
is to be allocated among the parties
proportionately to the comparative degree of their
fault.

Another course correction followed in Edmonds v. Compagnie
Generale Transatlantique, 443 U.S. 256, 99 S.Ct. 2753, 61
L.Ed.2d 521 (1979). There, the principle of joint and several
liability was applied to admiralty cases. As a result, a
plaintiff in admiralty may choose to sue one joint tortfeasor
and recover all damages sustained. If the tortfeasor against
which judgment is obtained is held liable for more than its
proportionate share, contribution permits that tortfeasor to
claim against the others and provides the mechanism whereby
damages are adjusted to reflect fault. Edmonds, 443 U.S. at 260
n. 8, 99 S.Ct. at 2756 n. 8; see Cooper Stevedoring, 417 U.S.
at 110, 94 S.Ct. at 2176; Self, 832 F.2d at 1546. There is some
tension, however, between Edmonds and the proportional fault
rule of Reliable Transfer. Edmonds suggests that as between the
injured party and the tortfeasors, the tortfeasors must bear
the loss, even if the end result is that one tortfeasor is
liable for more than its fair share as measured by relative
fault. "Contribution remedies the unjust enrichment of the
concurrent tortfeasor, and while it may sometimes limit the
ultimate loss of the tortfeasor chosen by the plaintiff, it
does not justify allocating more of the loss to the innocent
[plaintiff], who was not unjustly enriched." Edmonds, 443 U.S.
at 271-72 n. 30, 99 S.Ct. at 2762 n. 30 (citations omitted)
(emphasis added); Ebanks v. Great Lakes Dredge & Dock Co.,
688 F.2d 716, 721 (11th Cir. 1982), cert. denied, 460 U.S. 1083,
103 S.Ct. 1774, 76 L.Ed.2d 346 (1983).

The first approach apportions losses equitably among the
tortfeasors because the availability of suits for contribution
ensures that each tortfeasor, even one who elects to settle,
will bear the loss in proportion to its fault. However, a
tortfeasor has no incentive to enter an individual settlement
if it will remain vulnerable to suit based on plaintiff's
claim. This approach, therefore, disserves the strong policy in
favor of settlement. See Williams v. First Nat'l Bank,
216 U.S. 582, 595, 30 S.Ct. 441, 445, 54 L.Ed. 625 (1910); Marek v.
Chesny, 473 U.S. 1, 10, 105 S.Ct. 3012, 3017, 87 L.Ed.2d 1
(1985) (discussing express policy in favor of settlement
contained in Fed. R.Civ.P. 68). As a result, this approach has
not been applied in admiralty cases. See Miller, 887 F.2d at
906.

Imposing a bar to contribution actions, the second approach
discussed above, encourages settlement because the settling
tortfeasor is no longer subject to suits arising out of
plaintiff's claim. However, adoption of a settlement bar may
exacerbate the tension between Edmonds and Reliable Transfer.
In Reliable Transfer, as previously discussed, the Court held
that loss is to be shared among tortfeasors in proportion to
their fault in order to achieve a "'fair and equitable'
allocation of damages." Reliable Transfer, 421 U.S. at 411, 95
S.Ct. at 1715-1716. In contrast, a settlement bar in
conjunction with the rule of Edmonds would work to permit
situations where loss is not borne according to fault. A
tortfeasor could settle, and a joint tortfeasor, against whom a
suit is prosecuted, could still be held liable under Edmonds
for 100% of the loss. Imposition of a settlement bar to
contribution would preclude any redistribution of liability
and, in addition, would enable a plaintiff to receive a
windfall in the amount of the total of the damage award plus
settlement proceeds, less actual injury. Furthermore, the bar
creates the incentive for collusion between the plaintiff and
one or more of the tortfeasors to take advantage of a joint
tortfeasor with a deeper pocket. See Miller 887 F.2d at 905.

Regarding reallocation of liability among tortfeasors the
Ebanks court went on to say that the issue "is to be tried at a
different time between two live opponents." Id. On the facts of
Ebanks, this statement is troubling because it implies that a
suit for contribution may be allowed against a settling
tortfeasor. Drake Towing Co. v. Meisner Marine Constr. Co.,
765 F.2d 1060, 1067-68 (11th Cir. 1985), followed Ebanks, and again
implied that a suit for contribution would be allowed against a
settling tortfeasor. The court finally clarified its position
in Self v. Great Lakes Dredge & Dock Co., supra, by both
prohibiting reduction of liability to reflect fault and holding
that contribution cannot be had against a settling tortfeasor.
832 F.2d at 1547. Thus, the rule in the Eleventh Circuit is
that non-settling tortfeasors are jointly and severally liable
to the plaintiff, and actions for contribution against settling
tortfeasors are prohibited whether or not the loss is
distributed inequitably or the plaintiff recovers more than the
actual injury warrants. The First Circuit has also adopted this
approach, Joia v. Jo-Ja Service Corp., 817 F.2d 908, 915-17
(1st Cir. 1987), cert. denied sub nom., Boat Niagra Falls, Inc.
v. Joia, 484 U.S. 1008, 108 S.Ct. 703, 98 L.Ed.2d 654 (1988),
and in the Fifth Circuit allegiance to Leger is fading in favor
of the Eleventh Circuit's rule. See Hernandez v. M/V Rajaan,
841 F.2d 582, 591 (5th Cir.), cert. denied, 488 U.S. 981, 109
S.Ct. 530, 102 L.Ed.2d 562 (1988).

Nevertheless, it is true that Edmonds applied a policy of
solicitude towards plaintiffs. However, the First and Eleventh
Circuits' application of this policy appears to my eye to
extend Edmonds so far beyond its intended scope as to generate
an unnecessary conflict with Reliable Transfer. By contrast, as
set forth below, it is consistent with both Edmonds and
Reliable Transfer to reduce the claim against the non-settling
tortfeasor.

First, the objection to the pro rata approach raised by the
American Law Institute in the Restatement (Second) of Torts —
that plaintiffs would be less likely to accept a settlement
from a joint tortfeasor due to uncertainty regarding a possible
reduction in total damages — is simply a restatement of the
disincentive faced by any plaintiff who considers settlement. A
plaintiff considering settlement must always consider the
possibility that settlement will yield less than litigating a
cause to completion, and then weigh that possibility against
the costs of continuing to litigate, including the possibility
of winding up with nothing at the end. The joint tortfeasor
situation presents merely a slight variation of this often
intractable but quite commonplace dilemma. It presents neither
an additional disincentive to settlement nor a significant
burden on a plaintiff.

In admiralty cases the best rule is that actions for
contribution are prohibited against a tortfeasor which has
reached a good faith settlement with plaintiff. Any claim
against a non-settling party is then reduced by the greater of
the amount of settlement or the settling tortfeasors' equitable
share of the damages. See Associated Electric, 931 F.2d at
1271. This provides no major disincentive to settlement,
apportions damages fairly, and, in addition, respects the
Edmonds policy of solicitude towards plaintiffs.

The only question left to decide is whether plaintiff Stanley
and third-party defendant Blackwell reached a good faith
settlement. The "Order and Stipulation of Dismissal With
Prejudice," which I signed on November 7, 1990, states that
plaintiff "dismisses with prejudice the actions against Island
Records, Inc. and Chris Blackwell." A dismissal with prejudice
constitutes a final judgment on the merits and bars any future
suits based on the same cause of action. Nemaizer v. Baker,
793 F.2d 58, 60-61 (2d Cir. 1986) (Stipulation reading "this action
is dismissed with prejudice" has res judicata effect.).
Defendant has raised no hint of impropriety by the settling
parties. Thus, all plaintiff's claims against Blackwell have
been settled in good faith.

Betram-Trojan's third-party complaint is dismissed. Damages,
if any, that are awarded plaintiff following trial will be
limited to defendant's pro rata share of damages based on its
proportional fault, if any.

SO ORDERED.

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